IN BANCO

Dominion, Volume 1, Issue 193, 9 May 1908, Page 13

IN BANCO

A PLIMMERTON SCENIC RESERVE. ■ QUESTION ' OF; COMPENSATION. ' Mr.' Justice .Chapman also delivered served, judgment in tho .case of the Public Trustee v. Jackson' Palmer, Chief Judge ot the Native Land Court, and'the Minister for Public Works, an application for a. mandamus to the, Chief -Judge to hear, and determine'a. claim. for compensation under beetion 91 of the Public-Works Act, 1905. j i His Honour said : that._ the land, in question was tho major portion of a block sit-, uated near Plimmertori, and known as Taupo No. 2, containing 10 acres 2 roods •24 perches. In. July, 1881, it was vested m Wiremu Parata Kakakura as a burial place for the Ngatitoa. tribe. By the_ Native lie-serves-Act'Airieridment Act, 1896, Section 5, the property was ".vested as a Native reseiTe in tho Public Trustee who was directed to set apart 1 , ono acre of land as a cemetery and' empowered to, lcaso tho residue. It was furthor provided that tho rents snould 'go to; meet tho.cost, not only of . fencnig the land, but of keeping in repair a suitable, monument. to the Ngatitoa dead, and . that tho balance - was, to, be .divided; among the. Natives.' beneficially,' : entitled..in' proportions to be ascertained by the Native ,Land Court. •Then, again, .the land was under tho Maori Land Claims Adjustment and Laws Amendment Act, :1906, declared to bo, a scenic arid historic 'reserve under tho Seenery Preservation Act, 1903, which provided that: after .expending certain of the com-, ponsation moneys in. ropairi'rig : tho fence of, the burial ground the Public Trustee should invest tlw balance and: apply the incomo to, .the . persons .entitled.: " ' . • '~ ■ ■ The .first, question, .His Honour said,, was whether tho land taken was land upon the ■ taking of which the Native Land Court had jurisdiction 'to. deal'with the claim for compensation, 'or .whether it , should' be referred to ah ordinarv 1 Compensation: Court under 'the . Public, W.orks Act, 1905. /, The answer, depended' on whether, the case came :.within the intention, and .' therefore within., the terms of Section 91 of tho Public Works Act. For the purposes of the Public Works Act, 1905,. tho Legislature had ■ defined. Native land to:, mean held by .Natives un-, der their .customs: or usages, whether tho ownership .thereof, had ,been determined "by .the Native Lariff Court or not. His Horiouri had no doubt that as the land \vas originally held under a certificate of titlo it was Native land ' within the' definition' just, quoted, though not so within the. definition contained /-in ■ the > Native:' Land' Act/ 1894.Then; again,'it "was not, he : thought,, absolutely essential to' decide that it so remained; after'it; had been,-' transferred to the Public '■ Trustee.. ' Section 4)1 ',of the " Public Works Act, 1905, identified the class or classes of .persons: whose 1 claims "to compensation- had to bo:'liekrd'^b'y'thS ,; Nativd , .>Larid' ! Cburt' ; ''as " NativcS'Vinidrestei v iri;'\'iny^-Native,: laiidj."' and', as "Naltive"' owners of" anyf' land' held' or. owned under title derived from' the Crown." :Any: doubt', in. regard to the terms of -the Public Works Act Vwas..,'.'removed by .'the torins of the Scenery Preservation Act, ,1903, which by Scction3 -.dealt with; " Crown, private,..'or Native lands," iand 'intended that to v be exhaustive,.of all classes of land in' which tho only;. .persons' :interested. were Natives. If the!, .land' was in. .this - sense Native land," it was not necessary, under. tho .first part:Pf -tho classification to ascer-; tain whether the land could properly bo described as owned by these . Natives—it was; sufficient to ascertain that, they were interested in it. ' It/was His Honour's opinion, l-therefpre, that: the - claim for s compensation had been pfopcrlyv brought •:in ,the Native Land Court. A furthor, question' was raised' as to the. i power of the Minister to withdraw an application' initiating ; proceedings , in ; connectioin with the'inatter in the Native Land Court... i His, Honour said that the Minister was by section 91 subsection (a) of the Public Works Act, 1905, the proper person to "initiate proceedings iir cases within that section. Tho I language ' whan- /referring .' to" Government i works was permissive in form.- -Whether that meant"; anything different from 'the:next ; :follqwmg words which- were imperative in stating the duty of a local body might tbo open'-.to 'question; 'as the verbal difference might .be intendedVnieroly to refer "to: the [ q-aestaonl ! .of the'.time for the -performance-of! the duty..-In. either view of: the Minister's poTv'er or duty tho . result was, ho thought, the same.' His act:was an' act to'be performed . ones for all, and when it was per-' ■'formed a right'. arose -which the statute gave' no power. to set aside;' The Minister was. persona; designata'for the purpose of initiating, the [matter merely, and it would require a very clear expression of tho intention of the Legislature','to -give him' further, control over a proceeding in which, if he could -be said to'be interested at all, his interest was advorso to. that of those interested in the claim.. • His Honour therefore gave' judgment for tho plaintiff as prayed, the terms of order to be settled in Chariibers, if necessary.' ■ i At the recniest of counsel for the defendants, His Honour directed that tho order should lie in tlie'Court for fourteen days, andifnoticei of appeal.were given within'- that period it: should remain in Count until the appeal had been determined:' i Mr. C; H. Treadwell' apnearcd on behalf of plaintiff,] and: Mr; Bsll, K.C., for defendant tho Minister. - .